Talita Laubscher and Melissa Coger | May 9, 2025
A key step (general administrative EE regulations) for a designated employer to ensure compliance with the Employment Equity Act 1998 (EEA) and the affirmative litigation obligations under the Employment Equity Act 1998 (EEA) and the newly enacted Employment Equity Regulations is the preparation and implementation of the Employment Equity Plan (EE Plan).
EE Planning and Timing Period
With regard to Section 20(1) of the EEA, all designated employers must prepare and implement an EE plan that will achieve reasonable progress towards employment equity at all occupational levels of the employer's workforce.
Section 20(2)(e) of the EEA provides that the duration of an EE plan for a designated employer may not be shorter than five years, but the general administrative EE regulations state that the duration of an EE plan must be five years from September 1, 2025 to August 31, 2030 (there is a debate as to whether the requirements for an EE plan are in practice).
As indicated, with regard to section 20(2)(e) of the EEA, the EE plan could be shorter than five years, and this section has not been revised. Our considered view is that it is still open for designated employers to have an EE plan shorter than five years, but we caution that the employers' subsequent plans should be carefully aligned with the five-year sector goals. Additionally, if an employer becomes a designated employer after April 1, 2025, the EE plan may be shortened as the employer must prepare an EE plan for the remaining period until August 31, 2030.
Therefore, the specified start date for the EE plan must be September 1, 2025. Therefore, employers should take the time to prepare the EE plan well in advance to carry out sufficient time for the analysis to be carried out in accordance with the EEA12 form (notifying the contents of the EE plan) and to carry out sufficient time according to the EE12 form (notifying the contents of the EE plan).
Our suggestion is that the EEA1 form (used to collect the information needed for the workforce profile) should be collected during May, and employers should prepare a draft of barrier analysis by early June 2025. The designated employer will then use June to consult with employee representatives about the content of the analysis and aim to finalize the analysis at the end of June 2025.
The new Draft EE plan should be prepared in parallel with this, and designated employers should aim to have a Draft ee plan ready for consultation by early July.
Subsequently, discussions with employee representatives regarding the EE plan will take place in July and August 2025, with the final plan being implemented by the end of August 2025.
Your EE plan must include all the elements (associated with the general administrative EE rules) contained in the EEA13 form, including:
The purpose of each year of the plan.
Affirmative measures implemented as required in Section 15(2) of the EEA.
If there is an underestimation, numerical targets to achieve fair expressions of properly qualified people from designated groups within each occupational level, a schedule for doing so, and strategies for achieving these goals.
A timetable for each year for plans for both numeric and non-numerical goals.
The duration of the planning.
A procedure for monitoring and evaluating the implementation of a plan, including monitoring reasonable progress towards employment equity.
Internal procedures for resolving disputes regarding the implementation of the plan.
Senior managers and others responsible for monitoring and implementing plans. and
Other measures consistent with EEA objectives.
The objectives of the EE plan must be wise, measurable, achievable, relevant and time-of-day.
Regarding positive action measures, these should be informed by barrier analysis and include:
Measures to identify and eliminate employment barriers, including unfair discrimination that adversely affects people in designated groups.
Measures designed to further enhance workplace diversity based on equal dignity and respect for all.
Create reasonable accommodations for the designated groups of people to ensure that they enjoy equal opportunities and are expressed fairly.
Measures to ensure fair expression of appropriately qualified people from designated groups. and
Measures for the persons of the designated groups to be retained and developed and implement appropriate training measures, including measures for skill development.
These measures should exclude quotas and absolute barriers and include both numeric and non-numerical measurements. As an example, some non-mathematical measures that may be taken to improve the representation of a pool of potential candidates from designated groups may include scholarships, leave programs, or graduate programs. training Programs and programs aimed at developing or special measures for women to promote the appointment of persons with disabilities.
It is recommended that your EE plan include sufficient details of these non-mathematical positive action measures. Ultimately, these measures are aimed at improving the pool of properly qualified candidates and can go a long way to ensure Sustainable And a real change in the workforce.
The positive action measures mentioned in the EE plan must match those shown in the analysis taken along the EEA12 form. The new EEA13 form requires that the designated employer designate the applicable SETA classification and negotiation council in the EE plan; work Previously, it was only needed for reports.
Incorporating numerical and sector goals
Numerical targets set by employers in the EE plan must comply with newly published final sector goals. When setting goals, employers must consider their workforce profile and the applicable economically active population (EAP). The EEA13 form requires employers to specify in advance in the EEA13 template whether national or state EAP is referenced when setting numerical targets and targets.
It should be noted that sector targets are widely set for men and women, respectively, from the designated groups. Designated employers should perform mathematical exercises to set targets, proportional to the applicable EAP, to extrapolate these targets to different race groups.
Sector goals are set only at the top four occupational levels in the workplace, and employers must refer to the applicable EAP and other appropriate factors to set their own goals for the remaining occupational levels (i.e. semi-skilled and unskilled). Employers can be guided to the EEA9 form when distinguishing between different occupational levels.
In addition to workforce profiles, sector targets, and EAP, employers can also consider the following factors when targeting:
The specific requirements for a particular job.
A pool of properly qualified people.
A formal qualification, previous learning, ability to acquire within relevant experience or reasonable time, and ability to do the job.
The turnover rate and the speed of natural attrition within the workplace. and
Trends in employment and advertising within the workplace.
If any of these factors are considered when setting specific occupational level goals, it is recommended that you include sufficient details about this in your EE plan and maintain a support document proof of these factors.
Furthermore, in light of the constitutional court's decision on corrections servicewe recommend that you include provisions in your EE plan. The goals and targets of EE planning are not assignments, but rather not absolute barriers to advancement in overrepresentation groups. Additionally, employers are permitted to take race and gender into consideration when making appointment and promotion decisions, but are not obligated to do so, and in appropriate circumstances, they may make decisions that have the effect of not being addressed immediately.
For the time being, a detailed record of situations that lead to the maintenance of overexpression must be kept. Such circumstances should be linked to justifications by the Ministry of Employment and Labor (DOEL) to take into account if sector goals are not met.
Publishing and Retention
The EE plan does not need to be submitted to Doel and is not a public document.
However, it must be made available to employees of designated employers for copying and consultation, and must be prepared at the time of review by the Director or Labor Inspector. A copy of an EE plan must be kept for at least five years after it expires.
What you need to submit to Doel is an Employment Equity Report.
Talita Laubscher and Melissa Cogger, Partners and ChloëLoubser, Knowledge and Learning Lawyer, Bowmans South Africa
“Disclaimer – the views and opinions expressed in this article are the views of the author and are not necessarily those of the Bee Room.”
